New York State Ivory - Frequently Asked Questions July 2015

You will note that the New York state ban is even more onerous than the US Govt. ban. Note past blog entries that have covered state to state efforts. Again clearly this ban is an incremental step towards a total ban of all ivory regardless of age or how important it may be as an art object.


Ivory Ban NY State August 2014
IVORY AND RHINOCEROS HORN RESTRICTIONS
FREQUENTLY ASKED QUESTIONS
1. What does the law require?
• The law prohibits the sale, offer for sale, purchase, trade, barter or distribution of elephant and mammoth ivory articles and rhinoceros horn, with limited exceptions.
• The law authorizes the Department of Environmental Conservation (DEC) to issue licenses or permits to sell, offer for sale, purchase, trade, barter or distribute ivory articles and rhinoceros horn that qualify as exceptions under the law.
• The law increases criminal and civil penalties for the illegal sale of ivory articles and rhinoceros horn.
• The law requires DEC to post information on the DEC website regarding the prohibition on sale and purchase of ivory articles and rhinoceros horn in the state.
2. When does the law go into effect?
The law became effective on August 12, 2014. Any person with a license or permit issued prior to August 12th may continue to sell ivory articles and rhinoceros horn under the terms of that license or permit until it expires.
3. Who will be affected by the law?
The law will affect anyone involved in the sale, offer for sale, purchase, trade, barter or distribution of elephant and mammoth ivory articles and rhinoceros horn, in whole or in part, within New York, including:
• the general public;
• collectors;
• retail stores;
• art and antique dealers;
• auction houses;
• musical instrument manufacturers, technicians and musicians who intend to sell their ivory instruments;
• museums, scientific and educational institutions; and
• legal beneficiaries of a trust or heirs or distributees of an estate inheriting ivory articles or rhinoceros horn.
4. Why are ivory articles and rhinoceros horn being targeted?
Despite being listed as threatened or endangered in the Federal Endangered Species Act since the 1970s, elephant and rhinoceros populations across Africa and Asia are moving towards extinction. These animals are being slaughtered at an alarming rate to meet demand of the ivory and rhinoceros horn trades, much of which are unlicensed and illegal. The Wildlife Conservation Society estimates that 96 elephants are slaughtered in Africa each day and one December 3, 2014
subspecies in particular, the Central African forest elephant, faces extinction in the next decade if the current poaching rate continues.
New York City is the nation’s largest port of entry for illegal wildlife goods and consumer demand for ivory and rhinoceros horn products in New York is especially troubling.
This law addresses the system’s shortcomings by limiting the universe of ivory articles and rhinoceros horn that can be bought and sold in New York.
The law is also intended to deter illegal sales of ivory articles and rhinoceros horn in New York by increasing fines and penalties.
5. What is an ivory article?
An ivory article is any item containing worked or raw ivory from any species of elephant or mammoth.
6. What is the difference between raw and worked ivory?
“Raw ivory” is defined as any elephant or mammoth tusk, including pieces of tusk or polished items, which is unaltered or minimally carved. Any elephant or mammoth tusk that does not meet the definition of “raw ivory” is “worked ivory.”
7. What are the “limited exceptions” to the purchase and sale prohibitions?
Unless the activity is prohibited by Federal law, rule or regulation, DEC may issue licenses or permits authorizing the sale, offer for sale, purchase, trade, barter or distribution of ivory articles and rhinoceros horn provided that the owner or seller proves:
• The ivory article or rhinoceros horn comprises less than 20 percent of an antique that is at least 100 years old;
• The distribution or change in possession is for educational or scientific purposes, or to a museum chartered by the board of regents, or by special charter from the New York State Legislature;
• The distribution is to a legal beneficiary, heir or distributee of an estate; or
• The article is a musical instrument that contains ivory or horn and was manufactured no later than 1975.
8. Do I need a permit to buy or distribute an object that qualifies for one of the exceptions?
Yes, any sale, offer for sale, purchase, trade, barter or distribution that occurs in whole or in part within New York is prohibited without a permit from DEC. DEC will only issue permits consistent with state and federal law. The seller or person initiating the trade, barter or distribution of an ivory article or rhinoceros horn must obtain a DEC-issued permit and provide a copy to the purchaser. The purchaser does not need to secure a separate permit. However, a purchaser taking possession of the article in New York must ensure that a valid permit has been December 3, 2014
procured for the transaction and secure a copy of that permit prior to taking possession of the object. If the seller or person initiating the sale, trade, barter, or distribution is located outside of New York State and does not obtain a permit, then the buyer must obtain a DEC permit prior to the purchase.
9. Do I need a permit to physically display ivory articles or rhinoceros horn while offering them for sale in a retail or wholesale store or auctioning them in New York State?
Yes. A DEC permit must be secured in order to physically display an ivory article or rhinoceros horn for sale in New York State.
10. Do I need a permit to offer ivory articles or rhinoceros horn for sale in or from New York State via advertisement, catalogue or online?
Yes. A DEC permit must be secured for an ivory article or rhinoceros horn offered for sale in New York via advertisement, catalogue or online. Items that are permitted and offered for sale must include a statement indicating whether the item is available for sale or purchase within New York State or only out-of-state.
No one may offer ivory articles or rhinoceros horn for sale in New York State without a DEC permit.
11. Do I need a license or permit to consign my ivory article or rhinoceros horn to a gallery or auctioneer in New York?
No. The consignor of an ivory article or rhinoceros horn is not required to obtain a license or permit to consign the object to a consignee located in New York State. If the consignee offers the object for sale, the consignee must obtain a DEC license or permit.
12.Why does the law prohibit the sale, offer for sale, purchase, trade, barter and distribution of mammoth ivory?
It can be difficult to distinguish mammoth ivory from elephant ivory without specialized training and analysis. In addition, articles fashioned from elephant ivory can be altered to resemble mammoth ivory. Effective enforcement efforts require that elephant ivory and mammoth ivory be treated identically.
13. Does the law apply to all species and subspecies of rhinoceros?
Yes, since it is difficult to discern rhinoceros horn from different species, the prohibition covers all rhinoceros species and subspecies. In New York, the sale of any part of a Sumatran Rhinoceros or Black Rhinoceros, whether raw or manufactured, is prohibited by New York law and remains unlawful.
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14. In addition to an application, what other information is required to obtain a permit to sell, offer for sale, purchase, trade, barter or distribute an ivory article or rhinoceros horn?
Permits will only be issued where substantive evidence related to the ivory article or rhinoceros horn establishes that the articles may be legally sold, offered for sale, purchased, traded, bartered or distributed. Therefore, documentation establishing that the ivory article or rhinoceros horn qualifies for one of the exceptions will be required with the permit application. In addition to such documentation, all applications for a permit must be accompanied by a photograph of the ivory article or horn and a sworn affidavit from the applicant affirming that the affidavit is based upon personal knowledge as to the age of the article and validity of other required evidence and is given under penalty of perjury.
15. How do I establish the age of my ivory article or rhinoceros horn in order to obtain a permit from DEC under an exception?
Under the New York State law, a permit applicant must furnish historical documentation establishing provenance and showing the age of the article, ivory used in the article, or horn. The following evidence can be used to document provenance, age, and species of an ivory article or rhinoceros horn:
• United States Customs records;
• import declarations and CITES permits;
• verifiable bill of sale or receipt;
• bona fide testing using scientifically approved aging methods by a laboratory or facility accredited to conduct such test;
• photographs or media articles that date the item; or
• documentation that unequivocally establishes provenance, age of the article or horn, date of manufacture, or species.
DEC may issue guidance or regulations to further clarify the types of acceptable evidence.
16. How do I determine whether ivory or horn comprises less than 20% of an antique?
• For antiques whose ivory or rhinoceros horn includes one or more pieces of worked ivory or rhinoceros horn attached to a body made of other material (such as a cane with an ivory handle or tip, buttons or pulls), evidence should be submitted as to the overall three-dimensional volume or weight of the ivory or horn piece(s) in relation to the overall three-dimensional volume or weight of the object.
• For antiques whose ivory or rhinoceros horn consists primarily of thin slices inlaid into the surface, evidence should be submitted as to the surface area or volume of the inlays in relation to the overall surface area or volume of the object.
• A reasonable estimate of volume, weight or surface area is acceptable. Evidence may include pictures, calculations and other data.
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• For antiques that contain recent, non-original additions to the object, the new parts must be reasonably consistent with the original configuration of the antique as a whole. Non-original additions may not be considered in determining whether the object meets the 20% threshold for antiques to the extent that they reduce the proportion of ivory or horn in the object.
17. Are portrait miniatures less than 20% by volume of ivory?
A portrait miniature is a miniature portrait painting usually made between the 18th-century and the early 20th-century that used ivory as the medium for the painting. The ivory used in these works was no thicker than a piece of paper. Although the circumference is not standard, the volume of ivory used is approximately the same percentage for every portrait miniature. The percentage of ivory by volume used in the portrait miniature will be presumed less than 20%. However, this presumption may be rebutted by evidence to the contrary on a case-by-case basis.
18. How do I establish that my distribution is for bona fide scientific or educational purposes?
The following specific evidence must be submitted:
• A formal project proposal which specifies: (a) the scientific or educational affiliation or purpose of the project; (b) the data to be collected for scientific purposes; (c) the proposed and justified quantity of ivory or horn necessary for the project; and (d) a description of the ivory, including its age, necessary for the project; and (e) the duration of the project; and
• Resume/CV or other documentation describing the expertise and qualifications of the individual(s) listed on the application.
19. How do I establish that my distribution to a museum is legal for purposes of obtaining a permit?
The following specific evidence must be submitted for distributions to a museum chartered by the board of regents or by special charter from the New York State Legislature:
• Historical documentation establishing provenance and showing that the age of the article or horn pre-dates the listing of that species as endangered or threatened (1976 for ivory articles and 1970 for horn). Mammoth is presumed to be over 100 years old. Evidence that clearly establishes that the article is mammoth rather than elephant ivory must be submitted.
• Name of the museum receiving the distribution.
Distributions to museums outside of New York State will be treated similar to interstate sales (see 24. below).
20. What does it mean to “distribute” an ivory article or rhinoceros horn?
“Distribute” (or “distribution”) is defined as any transfer or change in possession with an accompanied by a change in legal ownership.
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21. Do I need a permit to distribute ivory or horn through a will or trust?
Yes. A permit in the form of a registration is required to lawfully distribute an ivory article or horn to a beneficiary of a trust, heir or distributee of an estate. The executor, trustee, beneficiary, heir or distributee is required to file this registration with DEC describing the ivory article or horn, submitting a picture of the item and declaring that possession of the item is lawful under New York State law. This registration does not authorize the beneficiary, heir or distributee to sell, offer for sale, trade, barter or distribute the ivory article or rhinoceros horn after the permitted distribution. A beneficiary, heir or distributee that intends to sell the ivory article or rhinoceros horn acquired from a trust or distributed from an estate must secure a DEC permit if he or she intends to sell the item.
22. How does the New York State law apply to intrastate commercial transactions?
The New York State law bans intrastate sale, offer for sale, purchase, trade, barter or distribution of any ivory article or rhinoceros horn, unless one of the exceptions apply and a DEC permit is issued. Intrastate sales are defined as those conducted wholly within New York State. This includes sales where the seller and purchaser are located in New York State, such as an in-person retail sale at a commercial establishment.
23. What is the interaction between Federal law and New York State law?
Federal law bans commercial imports and exports of ivory and horn with limited exceptions. New York’s law applies a similar commercial ban on sale, purchase, trade, barter or distribution in New York.
24. How does the New York State law apply to interstate sale, offer for sale, purchase, or distribution of an ivory article or rhinoceros horn?
Federal law prohibits the import, export and interstate sale (sale across state lines) of species listed in the Endangered Species Act, or their parts, without a Federal ESA permit. However, Federal law also creates a specific exception for items that qualify as “antique.” Therefore, the New York law, in concert with Federal law, limits the interstate sale, offer for sale, purchase, or distribution of any ivory article or rhinoceros horn to an ivory article or rhinoceros horn that has a Federal ESA Permit or:
• is 100 years or older;
• is composed in whole or in part of an ESA-listed species; and
• has not been repaired or modified with any such species after December 27, 1973.
Interstate sales are defined as any sale, offer for sale, purchase or distribution of an ivory article or rhinoceros horn conducted in part within New York State and in part in another state or foreign country. Interstate transactions include those where legal transfer of the article occurs in another state, or where the purchaser or seller is in another state.
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Interstate sale, offer for sale, purchase or distribution of an ivory article or rhinoceros horn in or from New York State requires a DEC permit.
25. How does the New York State law treat commercial sales of mammoth ivory in interstate commerce?
Mammoth is an extinct species not regulated under the Federal Endangered Species Act. However, New York has determined that effective enforcement efforts require that elephant ivory and mammoth ivory be treated identically. Therefore, interstate sale, offer for sale, purchase or distribution of mammoth ivory is permissible under similar conditions as elephant ivory.
26.What happens to the permit DEC issued to me before this law was enacted?
Any existing permit authorizing the sale of ivory articles or rhinoceros horn shall remain valid until it expires. Any new permit authorizing the sale of these items must meet the more stringent requirements of the new law. DEC permits issued under the new law will be valid for one year from the date of issuance.
27. What are the new criminal and civil penalties for violating this law?
• Criminal Penalties: For ivory articles, the law establishes a Class D felony penalty for the illegal sale, trade, possession with intent to sell or barter of ivory articles with a value exceeding $25,000.
• Civil Penalties: For both ivory articles and rhinoceros horn, the law increases penalties for violations of the illegal ivory articles and rhinoceros horn law (ECL § 11-0535-a) to not more than the greater of $3,000 or twice the value of the article for a first offense, and not more than the greater of $6,000 or three times the value of the article for a second or subsequent offense.

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What can I do with my ivory article or rhinoceros horn?
Elephant Ivory
Mammoth Ivory
Rhinoceros Horn
1. Commercial Intrastate Sale, Offer for Sale, Purchase, Trade, Barter or Distribution (buyer and seller within New York)
What can be sold, purchased, etc.?
An article that is at least 100 years old, contains less than 20% elephant ivory, and has not been repaired or modified with any ESA-listed species after December 27, 1973.
DEC permit necessary:
Yes
Proof needed to obtain a permit:
• Sworn affidavit;
• Historical documentation establishing provenance and showing the age of the article and any repairs to the article;
• Reasonable estimate of volume, weight or surface area less than 20%; and
• One or more photographs of the article.
What can be sold, purchased, etc.?
An article that is at least 100 years old, contains less than 20% mammoth ivory, and has not been repaired or modified with any mammoth after June 30, 2014.
DEC permit necessary:
Yes
Proof needed to obtain a permit:
• Sworn affidavit;
• Historical documentation establishing provenance and showing the age of the article and any repairs to the article;
• Documentation that clearly establishes the article is mammoth ivory;
• Reasonable estimate of volume, weight or surface area less than 20%; and
What can be sold, purchased, etc.?
An item that is at least 100 years old and contains less than 20% rhinoceros horn that is not from Sumatran Rhinoceros or Black Rhinoceros and has not been repaired or modified with any ESA-listed species after December 27, 1973.
DEC permit necessary:
Yes
Proof needed to obtain a permit:
• Sworn affidavit;
• Documentation that identifies the species of rhinoceros;
• Historical documentation establishing provenance and showing the age of the item and any repairs to the item;
• Reasonable estimate of volume, weight or surface area less than 20%; and
• One or more photographs of the item.
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• One or more photographs of the article.
2. Commercial Interstate Sale, Purchase, Trade, Barter or Distribution (buyer or seller outside New York State)
What can be sold, purchased, etc.?
An elephant ivory article with a Federal ESA permit; or an elephant ivory article that is at least 100 years old and has not been repaired or modified with any ESA-listed species after December 27, 1973.
DEC permit necessary:
Yes
Proof needed to obtain a permit:
• Sworn affidavit;
• ESA Permit or historical documentation establishing provenance, showing the age of the article, and any repairs to the article; and
• One or more photographs of the article.
What can be sold, purchased, etc.?
A mammoth ivory article that is at least 100 years old, and has not been repaired or modified with any mammoth after June 30, 2014.
DEC permit necessary:
Yes
Proof needed to obtain a permit:
• Sworn affidavit;
• Historical documentation establishing provenance and showing the age of the article and any repairs to the article;
• Documentation that clearly establishes the article is mammoth; and
• One or more photographs of the article.
What can be sold, purchased, etc.?
An item comprising rhinoceros horn with a Federal ESA permit; or an item comprising rhinoceros horn that is at least 100 years old and has not been repaired or modified with any ESA-listed species after December 27, 1973.
DEC permit necessary:
Yes
Proof needed to obtain a permit:
• Sworn affidavit;
• Documentation that identifies the species of rhinoceros;
• ESA Permit or historical documentation establishing provenance, showing the age of the item, and any repairs to the item; and
• One or more photographs of the item.
3.Distribution for educational or scientific purpose (Intrastate and Interstate)
What can be distributed?
Any elephant ivory article with a bona fide educational or scientific purpose.
What can be distributed?
Any mammoth ivory article with a bona fide educational or scientific purpose.
What can be distributed?
Any item comprising rhinoceros horn with a bona fide educational or scientific purpose.
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DEC permit necessary:
Yes
Proof needed to obtain a permit:
• Sworn affidavit;
• Formal project proposal;
• Resume/CV; and
• One or more photographs of the article.
DEC permit necessary:
Yes
Proof needed to obtain a permit:
• Sworn affidavit;
• Formal project proposal;
• Resume/CV; and
• One or more photographs of the article.
DEC permit necessary:
Yes
Proof needed to obtain a permit:
• Sworn affidavit;
• Documentation that identifies the species of rhinoceros;
• Formal project proposal;
• Resume/CV; and
• One or more photographs of the item.
Distribution to a New York State museum chartered by the Board of Regents or the Legislature
Gift, Sale, Trade or Barter
What can be distributed?
An elephant ivory article that pre-dates listing as an endangered or threatened species.
DEC permit necessary:
Yes
Proof needed to obtain a permit:
• Sworn affidavit;
• Historical documentation establishing provenance and showing the age of the ivory pre-dates 1976.
• Name of the museum receiving the distribution; and
• One or more photographs of the article.
What can be distributed?
A mammoth ivory article.
DEC permit necessary:
Yes
Proof needed to obtain a permit:
• Sworn affidavit;
• Documentation that clearly establishes the article is mammoth;
• Name of the museum receiving the distribution; and
• One or more photographs of the article.
What can be distributed?
An item comprising rhinoceros horn that pre-dates listing as an endangered or threatened species.
DEC permit necessary:
Yes
Proof needed to obtain a permit:
• Sworn affidavit;
• Documentation that identifies the species of horn;
• Historical documentation establishing provenance and showing the age of the ivory pre-dates 1970.
• Name of the museum receiving the distribution; and
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• One or more photographs of the item.
Distribution to an out-of-state museum
Sale, Trade or Barter
What can be distributed?
An elephant ivory article with a Federal ESA permit; or an elephant ivory article that is at least 100 years old and has not been repaired or modified with any ESA-listed species after December 27, 1973.
DEC permit necessary:
Yes
Proof needed to obtain a permit:
• Sworn affidavit;
• ESA Permit or historical documentation establishing provenance, showing the age of the article, and any repairs to the article; and
• One or more photographs of the article.
What can be distributed?
A mammoth ivory article that is at least 100 years old and has not been repaired or modified with any mammoth after June 30, 2014.
DEC permit necessary:
Yes
Proof needed to obtain a permit:
• Sworn affidavit;
• Historical documentation establishing provenance and showing the age of the article and any repairs to the article;
• Documentation that clearly establishes the article is mammoth; and
• One or more photographs of the article.
What can be distributed?
An item comprising rhinoceros horn with a Federal ESA permit; or item comprising rhinoceros horn that is at least 100 years old and has not been repaired or modified with any ESA-listed species after December 27, 1973.
DEC permit necessary:
Yes
Proof needed to obtain a permit:
• Sworn affidavit;
• Documentation that identifies the species of rhinoceros;
• ESA Permit or historical documentation establishing provenance, showing the age of the item, and any repairs to the item; and
• One or more photographs of the item.
Distribution to an out-of-state museum in the form of a gift*
What can be distributed?
An elephant ivory article that pre-dates listing as an endangered or threatened species.
What can be distributed?
A mammoth ivory article.
What can be distributed?
An item comprising rhinoceros horn that pre-dates listing as an endangered or threatened species.
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* A gift includes a transfer or change of ownership without compensation.
DEC permit necessary:
Yes
Proof needed to obtain a permit:
• Sworn affidavit;
• Historical documentation establishing provenance and showing the age of the ivory pre-dates 1976;
• Name of the museum receiving the distribution; and
• One or more photographs of the article.
DEC permit necessary:
Yes
Proof needed to obtain a permit:
• Sworn affidavit;
• Documentation that clearly establishes the article is mammoth;
• Name of the museum receiving the distribution; and
• One or more photographs of the article.
DEC permit necessary:
Yes
Proof needed to obtain a permit:
• Sworn affidavit;
• Documentation that identifies the species of rhinoceros;
• Historical documentation establishing provenance and showing the age of the horn pre-dates 1970;
• Name of the museum receiving the distribution; and
• One or more photographs of the item.
Distribution to a legal beneficiary or heir/distributee of an estate
What can be distributed?
An elephant ivory article that pre-dates listing as an endangered or threatened species.
DEC permit necessary:
Yes (Registration)
Proof needed to obtain a permit:
• Written description of the article;
What can be distributed?
A mammoth ivory article.
DEC permit necessary:
Yes (Registration)
Proof needed to obtain a permit:
• Written description of the article;
What can be distributed?
An item comprising rhinoceros horn that pre-dates listing as an endangered or threatened species.
DEC permit necessary:
Yes (Registration)
Proof needed to obtain a permit:
• Written description of the item;
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• Declaration that the registrant believes the article pre-dates 1976; and
• One or more photographs of the article.
• Declaration that the registrant believes the article to be mammoth; and
• One or more photographs of the article.
• Declaration that the registrant believes the item pre-dates 1970; and
• One or more photographs of the item.
Sale, purchase, trade, barter or distribution of a musical instrument
What can be distributed?
A musical instrument comprising elephant ivory that was manufactured prior to 1975 and is not prohibited by Federal law.
DEC permit necessary:
Yes
Proof needed to obtain a permit:
• Sworn affidavit;
• Historical documentation establishing provenance and showing the manufacture of the instrument before 1975; and
• One or more photographs of the article.
What can be distributed?
A musical instrument comprising mammoth ivory that was manufactured prior to 1975.
DEC permit necessary:
Yes
Proof needed to obtain a permit:
• Sworn affidavit;
• Historical documentation establishing provenance and showing the manufacture of the instrument before 1975; and
• One or more photographs of the article.
What can be distributed?
A musical instrument comprising rhinoceros horn that was manufactured prior to 1975; is not prohibited by Federal law; and does not contain Sumatran Rhinoceros or Black Rhinoceros.
DEC permit necessary:
Yes
Proof needed to obtain a permit:
• Sworn affidavit;
• Documentation that identifies the species of horn;
• Historical documentation establishing provenance and showing the manufacture of the instrument before 1975; and
• One or more photographs of the item.
Non-commercial movement and personal possession
What is permissible?
ECL §11-0535 permits the non-commercial movement and personal possession of raw
What is permissible?
Possession of articles made from mammoth ivory.
What is permissible?
ECL §11-0535 permits the non-commercial movement and personal December 3, 2014
elephant ivory and articles made from elephant ivory that pre-date 1976.
The enactment of ECL §11-0535A did not affect this type of activity.
DEC permit necessary:
Yes, for raw ivory;
No, for articles made from elephant ivory.
The enactment of ECL §11-0535A did not affect this type of activity.
DEC permit necessary:
No
possession of items comprising rhinoceros horn that pre-date 1970.
The enactment of ECL §11-0535A did not affect this type of activity.
DEC permit necessary:
Yes, for raw rhinoceros horn;
No, for articles made from rhinoceros horn.
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